“Representative [Lamar] Smith … called for the Immigration and Naturalization Service to exercise prosecutorial discretion in hardship cases. That is, immigration officials would simply decline to proceed with a deportation case… Second, Mr. Smith proposed that the attorney general use a provision of immigration law that allows her to ‘parole’ aliens into the country for ‘’urgent humanitarian reasons.’ Parole, he argued, could be used to prevent deportation as well as to allow entry… ‘The government can always do what it wants to do in hardship cases,’ the Congressman said. ‘We should not let the letter of the law get in the way of the spirit.’ … He also said that a large number of ‘hardened criminal’’ aliens were ‘’still slipping through the cracks’ and not being deported. ”Why not use your resources on them?” he asked. ‘Why are they spending their time on cases that cry out for compassion? They’ll never be able to persuade me that they can’t do that.’” —New York Times, March 18, 2000
In 2000, Lamar Smith’s 1996 legislation came under attack for its harsh and unforgiving nature, which resulted in the deportation of people in sympathetic situations, such as young college students who had grown up in the U.S. and gotten trapped in the system. However, rather than amend his law to ameliorate these effects, Mr. Smith (R-TX) urged the then-INS to exercise its discretion to avoid these results in sympathetic cases. The INS did just that, and prosecutorial discretion in the immigration context became a publicly articulated policy.
Fast-forward to today, when prosecutorial discretion has been largely ignored for years and when, in the intervening years, the cruelly indifferent 1996 Act has created countless more such sympathetic cases. Finally, in 2010, DHS officials have started to conduct internal discussions on how to deal with these kinds of cases, how to operate efficiently after years of disjointed tail-chasing, and how to go after hardened criminals instead of the cases that cry out for compassion, just like Mr. Smith urged.
So what happened? Entrenched interests within the department, fearful of this change, have leaked internal “think piece” discussion memos to members of Congress, including Mr. Smith. And the reaction? You guessed it: ” ‘The President has promised border security and immigration enforcement. He has said we must hold individuals accountable for their illegal acts,’ said Rep. Lamar Smith of Texas, the top House Republican on the Judiciary Committee. ‘But now we find out the truth: while saying one thing to the public, the Obama administration is scheming to ensure that immigration laws are not enforced.’”—per ABC News, July 30, 2010
The sheer hypocrisy of Mr. Smith and his co-ranters should be sufficient to enable DHS to treat these attacks with the lack of seriousness that they deserve. But instead we see very little of the Department standing up for the principles behind these discussions. Yes, they are not policy. They were just discussions. But many of the ideas in these memos are excellent, and should be implemented—soon. But instead of implementation, the Administration appears to be running for cover.
DHS, stand up. Say that we need these reforms, and why we need them. Then make them happen. Just because Congress is paralyzed doesn’t mean you need to be. As Mr. Smith told you a decade ago, you have the legal basis to do it. So do it.